Leiden Law Blog - democracyhttps://leidenlawblog.nl
enk.i.m.van.leusden@law.leidenuniv.nlCopyright 20182018-08-07T08:00:00+00:00CA and Facebook – a prime example of a multi-actor and multilevel legal issuehttps://leidenlawblog.nl/articles/ca-and-facebook-a-prime-example-of-a-multi-actor-and-multilevel-legal-issue
https://leidenlawblog.nl/articles/ca-and-facebook-a-prime-example-of-a-multi-actor-and-multilevel-legal-issue#When:April 4, 2018In mid-March the shocking story about Cambridge Analytica (CA)’s sophisticated hacking of Facebook’s data portability system hit the news. Taking a closer look at the case, the hacking turns out to be just the tip of the iceberg.]]>

In mid-March the shocking story about Cambridge Analytica (CA)’s sophisticated hacking of Facebook’s data portability system hit the news. There was huge media outrage and given Facebook’s large user base, millions of people could identify with the victims of CA’s data robbery. Taking a closer look at the case, the hacking turns out to be just the tip of the iceberg when it comes to problems related to CA’s data business that sends a chill down the spine: manipulation of UK and US voters, security flaws, circumvention of election laws and the complete dismantling of users’ online privacy.

A multi-actor issue – who is to blame?

Before embarking on an exploration of the legal dimensions of the case, one important question to answer is: who committed the wrongdoing? Looking for those most likely to be blamed, Cambridge Analytica and their executives are first in line. Recent reporting indicates that the company was using personal data in an unethical and illegal manner to serve their illegitimate (and possibly unlawful) business goals.

Facebook was a key source of data that was fed into the CA algorithm to make better predictions on voters’ behaviour. The social media giant is now trying to play the role of a scapegoat and contends that the theft of data happened without their knowledge or authorization, in other words that they have been deceived. But Facebook fails to acknowledge that poor security oversights and fluid access policies makes them just as guilty as anyone else in this story.

Political campaign teams who hired CA to work for them were surprisingly quiet in the public debate. But given the huge sums of money that they paid to CA before the vote, it is hard to believe they did not have a full understanding of what the company was able to do for them. Regardless of the actual effects of CA’s work, the involvement and accountability by the campaigners should not be swept under the rug. In the UK, the data shows that the campaign teams, who did not hesitate to spend up to half of their whole budget to pay for CA’s analytical services, bypassed election laws by coordinated international money transfers. This illegal muddling of financial flows is what eventually placed them in the spotlight. It will be interesting to see how the story will evolve.

Finally, it has been argued that users should be the ones to condemn. I both agree and disagree. In the CA saga, not only users’ data but also their friends’ data was misappropriated. Those friends had no means of protecting themselves, nor were they aware of what was going on. Requesting a more proactive response from those users would go too far in my view. Users should only be held responsible for their data as long as the platforms give them viable options to exercise such control.

What seems more plausible is to point the finger at the policy-makers. They are the ones that should be more reactive and responsive to data threats. In fact, some authorities have already felt pressure to act. Some more successful attempts are the upcoming EU General Data Protection, the proposal for the Honest Ads Act in the US and the EU Member States’ guidelines on using personal data for political advertising. But talking about consequences has never been popular on social media or in the online context in general. In addition, the damage has already been done and the proposals are lagging behind before they have even been adopted.

To better understand the conundrum of legal issues in the case, this blog provides a short analysis of the legal actions that have been triggered in the last couple of days. The focus is on the EU but the US will be mentioned as well to illustrate that the legal responses on the two sides are, to a large extent, analogous.

Protection of personal data

Following the media outburst, privacy watchdogs were the early respondents. On March 17, the UK Information Commissioner (ICO) revealed that they had launched an investigation of the CA data processing practices. After several unsuccessful attempts to enter CA’s premises and conduct investigations, the ICO decided to request a warrant and get access to data on the basis of a court decision instead of CA’s voluntary approval. The Court granted the warrant after being convinced of the likelihood of violations of the provisions of the UK Data Protection Act, in particular of the principle of fair and lawful processing of data. Lawful processing of data relates to the question of legal basis such as consent or contract that justifies the use of data. Fairness of processing is a more open term, typically linked to transparency of processing and the possibility of individuals to oppose the processing. The data mining carried out by Cambridge Analytica was not only opaque and gave no feasible option to users to express their objection, it also failed to provide an adequate legal basis.

The CA and Facebook story triggered individuals to start exercising their data subject rights under data protection law. In 2017, Professor Carroll, a US citizen, filed a request to Cambridge Analytica to access his data. The request was successful, but Carroll alleged that the data firm did not fully disclose how it arrived at their predictions. Now he is suing the company to hand over all the data that they have on him as well as the source of this data. He hopes that after the lawsuit he will finally be able to access the full set of data that the company holds on him and figure out how his voting behaviour was influenced.

Commercial lawsuits

From a commercial point of view, Facebook investors have decided to sue the company as its value decreased sharply after the revelations and users started leaving. According to their allegations, Facebook "made materially false and misleading statements" about the company's policies, and was covering up the fact that third parties got access to data on millions of people without their knowledge. The deceiving statements of the company executives misguided investors and contributed to their financial losses. The Court is still to decide on this matter.

Criminal law aspects

It looks like the Facebook and CA saga will go beyond the boundaries of civil law actions. In an interview for Wired, M. Zuckerberg hinted that a criminal investigation of CA was about to follow. Under the UK DPA, misuses of personal data may in some cases lead to a criminal offence. Some suggested that criminal action may also be brought against a UK pro-Brexit campaign team due to illegal financial funding of the data-driven political advertising.

Conclusions

There are two key points to learn from the case. First, protecting personal data in the digital era takes much more than formalistic compliance. It requires on-going internal monitoring, business sacrifices and closely involved authorities. Second, as problems get multi-level, the legal response cannot be idiosyncratic. Rather, the bunch of potentially harmful effects of using data for the manipulation of voters proves the need for joint action by multiple authorities including data protection, competition and consumer protection authorities. Marsden and Brown argue for the so-called prosumer law – a regulation of digital platforms through mechanisms that draw on solutions from multiple legal areas. The CA & Facebook case is an excellent example to demonstrate how this approach could be useful. However, implementation could be challenging. Prosumer regulation requires proactive and cooperative data (protection, security, dominance) watchdogs involved not only at a national but also an international level.

]]>Interdisciplinary Study of the Law,2018-08-07T08:00:00+00:00Helena UršičCatalan Elections: Independence or Self-Governmenthttps://leidenlawblog.nl/articles/catalan-elections-independence-or-self-government
https://leidenlawblog.nl/articles/catalan-elections-independence-or-self-government#When:December 19, 2017After the failed referendum, the Catalan Parliament voted to break away while the Spanish government took control of the regional authorities sacking the PM, dissolving Parliament and calling new elections]]>

Despite the work done by the Catalan authorities who worked secretly, it is easily conceivable that the consultation was lacking in certain basic democratic guarantees as evidenced by the irregularities with the non-official census; the partiality of the members of the polling stations who were volunteers and not citizens chosen after an impartial process; or evidence of voters voting more than once at different polling stations. In spite of all this, the pro-independence forces assumed the popular mandate of the referendum and proclaimed the Catalan Republic on 27 October 2017 with half of the deputies absent from their seats.

The Spanish government triggered Article 155 of the Spanish Constitution (SC). After the authorisation of the Senate, several Royal Decrees were passed to formalise the cessation of certain regional authorities, including the Prime Minister and the ministers, and the dissolution of some administrative bodies and even the Parliament of Catalonia. The competence of the Spanish government ex Article 155 SC to cease the Catalan government and dissolve Parliament calling for new elections is quite controversial from a constitutional point of view. As a result, half of the Catalan ministers (including the Deputy Prime Minister) were jailed and the other half (including the Prime Minister) escaped to Brussels to internationalise the Catalan process.

Article 155 SC is an exceptional mechanism, never applied before in the young Spanish democracy, and therefore lacking in precedent. Recently, an Appeal for Unconstitutionality has been filed and should be resolved by the CC in the following weeks or months. The cessation of the government and the dissolution of parliament will, however, be consolidated facts, as they will have developed all the legal effects despite the possibility of being considered unconstitutional. The decision of the CC is still important in the event the blockade situation persists in the future.

The elections are extraordinary as they have been called by Spanish Prime Minister instead of the Catalan Prime Minister. This electoral campaign is highly polarised, with the pro-independence candidates objecting to the invasive reaction of the Spanish government and the constitutionalist forces calling for the end of the independence process. It remains to be seen what will happen if the pro-independence forces win again, and if the Spanish government will lift the measures imposed against the Catalan institutions (or if a decision by the CC will eventually force the Spanish government to do so) or if they will perpetuate them sine die until the constitutionalist forces are able to win elections.

]]>Public Law,2018-08-07T08:00:00+00:00Manel Moya NogueraA new approach to democracy – with old rootshttps://leidenlawblog.nl/articles/a-new-approach-to-democracy-with-old-roots
https://leidenlawblog.nl/articles/a-new-approach-to-democracy-with-old-roots#When:June 28, 2017According to Vandana Shiva we must shift from representative democracy, in which corporations rule, to ‘Earth Democracy’ to deal with our current crises – to end conflict and bring peace. It means including the excluded into our conception of the economy.]]>

In the Netherlands a majority of seats in parliament can usually only be reached when several parties join together to form a government. At the moment four parties are involved in this process. When they succeed, this government will have to make a lot of decisions based on compromise. In the UK half the population did not want a Brexit. In the US Trump won the election although more than half the population did not vote for him. To what extent do these governments still represent their citizens? In a sense, representing only half the population is still true to the original Athenian conception of democracy, which – as is well-known – excluded all women and slaves!

Earth Democracy

Do we actually dare to question the system of representative democracy as a whole? The Indian activist and physicist Vandana Shiva has been doing this for decades now, and even offers an alternative that should be taken seriously. In her book Earth Democracy she points out that ‘representative democracy is increasingly inadequate at defending our fundamental freedoms’ and that ‘no matter which party holds office (…) in reality, corporations rule’. To deal with the resulting crisis ‘we must broaden democracy to include the excluded – disfranchised communities, children, prisoners, the elderly, and the diverse species of earth. (…) We need Earth Democracy to protect our freedoms, to maintain the earth’s life support system, to ensure justice and sustainability, to end conflict and bring peace.’
The kind of freedom that she is talking about is very different from the prevalent notion of freedom based on Cartesian ‘separation and independence’, in which our dependence on ‘women, farmers, workers and other cultures and species’ is ignored. She is convinced that in a genuine sense of freedom diversity plays a central role, which entails, ‘above all, a commitment to let alternatives flourish in society and nature, in economic systems, and in knowledge systems.’

The three economies

For Shiva the rule of corporations must be seen in the light of our ideas about the economy. In a representative democracy the market economy is considered to be the only economy, which has paved the way for the rule of corporations. She points out that in Earth Democracy, however, not one but three economies must be distinguished. The first one is nature’s economy, which ‘consists of the production of goods and services by nature – the water recycled and distributed through the hydrologic cycle, the soil fertility produced by micro-organisms, the plants fertilized by pollinators.’ Second is the sustenance economy, which ’is the economy of two-thirds of humanity engaged in craft production, peasant agriculture, artisanal fishing, and indigenous forest economies.’ And the last one is the market economy, which depends entirely on the first two. The practice of including the excluded, of conserving diversity in Earth Democracy, means that the economy should not just include all people, but also the non-human species and the living land in which they are all embedded. It means considerably enlarging the context. You could even say that the living land is the context.

The historical dimension

Shiva emphasises that with the concept of Earth Democracy she is not introducing a new idea, but reviving a very old one: indigenous people all over the world have been aware of this larger context, of our dependence on the earth, its cycles and on other species. Additionally, she shows that there is an important historical dimension to our ideas about the economy as well. According to her, the market economy could grow to today’s dominant position, because of the ‘closure of the commons’ – a colonisation process which started in Europe and later spread to the other continents, displacing and uprooting the lives of the original inhabitants. First the commons were turned into private properties, then the corporations gradually increased and spread their power, and were given legal rights, culminating eventually in corporate globalisation. So in fact there has been a process of narrowing the original context to our modern conception. We are to bring it back to its original proportions.

Terra nullius or terra mater

An important factor in this process has been the different ways in which the earth was viewed and dealt with. Shiva points out that ‘most sustainable cultures, in all their diversity, view the earth as terra mater (mother earth). They gratefully receive nature’s gifts and return the debt through ecologically sustainable life styles and earth-centered cosmologies.’ The colonial view was one of earth as ‘terra nullius, of an empty land, a passive earth, which denied the existence and prior rights of the original inhabitants and (…) obscured the regenerative capacity and processes of the earth.’ The dominant view today in our representative democracy is still one of terra nullius, but more and more people today are rediscovering terra mater.

Fundamentalism

Interestingly, Shiva also relates the rise of fundamentalism and terrorism to the dominance of the market economy and subsequent corporate globalisation: fundamentalists have been pushed in that direction by ‘the indignity of being treated as disposable’ and are basically driven to ‘retrieve a sense of self, of meaning, of significance.’ This is very different from the widespread (and populist) notion that fundamentalism is a phenomenon that is confronting the Western world from the outside. By showing that we must (also) acknowledge the Western contribution to it (as Karen Armstrong has also done), she brings it very close to us, perhaps even uncomfortably close.

Of course in this blog I can’t do full justice to the wealth of Vandana Shiva’s ideas. It’s important to know that they are very much founded in her practical life as an activist. I can’t help thinking that the struggle to create a new government in the Netherlands would be eased a lot if the politicians involved could find some time to take in the larger context as well. Perhaps the break for the summer holidays would be a perfect time for this kind of reflection. I’m sure in the end this will also be beneficial to the people they represent.

]]>Criminal Law and Criminology, Interdisciplinary Study of the Law,2018-08-07T08:00:00+00:00Wim BonisIf Slaughterhouses had Glass Walls…https://leidenlawblog.nl/articles/if-slaughterhouses-had-glass-walls
https://leidenlawblog.nl/articles/if-slaughterhouses-had-glass-walls#When:March 31, 2017We have yet to encounter a situation where the concealment of actions has aided the pursuit of justice. Lack of transparency in slaughter houses is not only harmful for the animals that are secretly beaten up, but also compromises our democratic rights.]]>

A Belgian association for animal rights recently revealed shocking footage of horrific animal cruelty in a slaughter house in Tielt, Belgium. In the footage, we see how pigs are frequently kicked and beaten and how they're dragged by their ears or using a chain around their feet if they are too crippled to walk. We see pigs being hoisted while conscious, having their throat cut while conscious, and we see how one pig drowns to death in a steaming hot bath, a bath originally designed to burn away the hairs of pig corpses. The footage caused enormous commotion, and led to the Flemish minister for animal welfare Ben Weyts to (temporarily) shut down the concerned slaughter accommodation. The aspect of this case I want to draw attention to is the problematic character of the non-transparency in the animal industry, illustrated yet again in this incident. The public upheaval this week proves once more that the public generally doesn't accept many practices that so often occur in the animal industry. Once these practices of animal cruelty have been revealed, democratic representatives immediately feel public pressure to end these cases of animal cruelty. Therefore, the chronic concealment of what happens in the animal industry does not only harm animals, but it also compromises the right of humans to make informed democratic and economic choices.

Correlation between visibility and protection

In her book Animals, Equality and Democracy, Siobhan O'Sullivan demonstrates that there is a correlation between the visibility of animals and their legal protection. Animals that are visible generally enjoy relatively good legal protection, whereas animals who are hidden away generally don't. Apparently, once we are confronted with animal abuse, we tend to prohibit it. Indeed, we see this process at work everywhere around the world: resistance to public forms of animal abuse such as bullfighting and fox hunting is growing. This growing public disapproval has also translated into an increasing introduction of legal bans on public animal abuse. But, as O'Sullivan illustrates in her book, visibility is an important, if not indispensable condition for this development. Out of sight is out of mind. A reverse use of this knowledge teaches us that non-transparency, therefore, is an important condition for the continuance of animal cruelty. The animal industry viciously turned this wisdom into economic strategy. In order to remain economically viable, animal companies are being compelled to keep the whole process of animal raising to slaughter under the radar. It is not accidental that slaughter houses are generally situated in rural areas, that the buildings have no windows, and that animal welfare inspectors are intimidated when they visit. In some areas, the agricultural lobby has even persuaded the (local) government to introduce so-called ag-gag laws: laws that criminalise whistleblowers who make or publicise footage from inside industrial farms. It is clear that the animal industry persists only by the grace of opacity.

Compromising the open society

This strategy of intentionally preventing information from reaching the public could be perceived as an undemocratic act. In an open democratic society, the public has a right to know what's going on in society, in order to enable it to shape society according to its own will. The principle of transparency, also argues O'Sullivan, is vital to democracy. If certain dubious actions are chronically tucked away and impenetrable without breaking the law, the public is seriously compromised in their democratic right to participate in policy making. How can we make sure that the right aspects of society are given priority in policy making if one dark aspect of our society is chronically underexposed and thereby almost immune to public scrutiny? How can we be sure that the level of animal welfare in the animal industry reflects the level desired by the public, if the public is unable to inform themselves about the actual situation in the animal industry? A certain level of transparency is vital in an open society, so that the public is able to employ their democratic arms should any injustice reveal itself. It is a well-known quote that if slaughterhouses had glass walls, everyone would be vegetarian. Maybe it is time to rephrase the quote in a political context: If slaughterhouses had glass walls, everyone would regain their full democratic rights.

]]>Interdisciplinary Study of the Law,2018-08-07T08:00:00+00:00Janneke VinkThe State of Dutch Democracy: Dancing on the Deck of the Titanic?https://leidenlawblog.nl/articles/the-state-of-dutch-democracy-dancing-on-the-deck-of-the-titanic
https://leidenlawblog.nl/articles/the-state-of-dutch-democracy-dancing-on-the-deck-of-the-titanic#When:March 21, 2017The state of Dutch democracy is uncertain. After last week’s elections, the stability of the political system appears guaranteed for the next couple of years. We cannot be sure, however, what will happen afterwards. This marks a change from the past.]]>

To begin with, although the Freedom Party did not finish first, it has now become the second largest party in the country. For this reason, the Dutch would be ill-advised to believe that they can put the topic of populism and its relationship to democracy to one side. On the contrary, as Jan-Werner Müller has argued in his book What is Populism? (2016), liberal democracies have quite a bit of homework to do. For example, if populism is characterised by antipluralism, what exactly do they believe that pluralism is good for, if anything?

Secondly, the dramatic loss of the Labour Party inevitably raises the question whether Dutch party democracy is grinding to a halt? Of course, scholars have already been pointing to the need to start thinking (again) about how to organize democracy without parties for quite some time. Although a simultaneous gain such as that by the GreenLeft party demonstrates that even now the political party may not be over yet, the other former system party of the Christian Democrats has booked its second worst result in modern political history as well.

Thirdly, to the extent that the historic loss of the Labour Party is the result of its having been the junior partner in a cabinet with Prime Minister Mark Rutte’s Liberals, the volatility of the electorate is once again a striking feature of the election outcome. Recently, this topic was even made a subject for consideration by the new State Commission on the Parliamentary System. What seems clear, is that this time the results could easily have been different, and that in the next election we may be in for new surprises.

As was already argued before the elections, the ‘levelling’ of the party political landscape is perhaps the most notable aspect of this particular election, in that the Liberal Party is the second smallest of the largest parties ever represented in the Dutch Lower House. On the one hand, this does not seem like a major change, since the Netherlands has always been a plural country. On the other hand, at least four parties are now needed to form a new majority cabinet, and voters could find themselves without a credible alternative in the next elections.

What this means, is that one does not have to be a pessimist to conclude that it is too early to tell whether democracy in the Netherlands is indeed healthier than ever, or that the Dutch are merely dancing on the deck of the Titanic.

]]>Public Law,2018-08-07T08:00:00+00:00Hans-Martien ten NapelBeastly Politicshttps://leidenlawblog.nl/articles/beastly-politics
https://leidenlawblog.nl/articles/beastly-politics#When:October 27, 2016Does the liberal democratic state defy its own basic principle of equality by denying certain beings with interests the political power to defend these fundamental interests?]]>

'Animals whom we have made our slaves we do not like to consider our equals', Charles Darwin wrote in 1837. Even centuries after his death this observation by Darwin is still striking. Today, indeed, we still find it hard to perceive non-human animals as our moral equals. It is not surprising that we find it even harder to see 'our slaves' as our political equals. What on earth could animals have to do with politics? They cannot talk, they cannot debate and they certainly cannot vote, it is claimed. So why should we consider them as our political equals? Isn't politics an excellent example of a business that should be exclusively reserved for intelligent and rational humans? Reserved for the political animals, as Aristotle already referred to humans in his work Politika?

A Modern Discipline

Today, thinking about the political status of non-humans is not as novel as it was in Aristotle's era. The discipline of animal politics gains more theoretical attention every year and ideas about what should be the appropriate status of animals in politics are diverse. Some contemporary thinkers claim that (some) non-human animals are important to human politics, some claim that the political consideration of their interests should be mandatory, and some even claim that non-human animals already act politically, but that they only lack recognition of these acts in general politics.

The Equality Principle and the Demos

The idea that all sentient animals are owed political consideration logically follows from the science-based doubt with regard to the belief of categorical human superiority, combined with the primary importance of the (to non-humans extended) equality principle. It might be argued that some non-human animals are part of the demos, because they live and/or are born on the territory of the state and many of their fundamental interests are affected by political decisions. The equality principle at the heart of democracy requires equal representation of the demos. However this can hardly be achieved as long as only one species is formally represented. Doesn’t the liberal democratic state defy its own basic principle of equality by denying certain beings with interests the political power to defend these fundamental interests? Of course there are obvious problems which prevent non-human animals from politically representing themselves, but if they have a claim to representation why shouldn’t humans be charged with this task?

Are We Human Tyrants?

In this light, current (exclusively human) democracies may seem to be out dated in the sense that their apparatuses and ratios stem from an era in which the notion of human superiority went mostly undisputed. Because our democracies developed in a time in which only humans were taken to be of ethical concern, this anthropocentrism is also reflected in our traditional political institutions. The historical understanding of non-humans has resulted in the formal ignorance of non-human interests in politics up to this day. In very strong terms one may even typify our current human rule over non-humans as tyrannical political rule, as Jeremy Bentham implied in 1789. We, humans, have ascribed ourselves the unlimited right to rule over non-humans’ lives and we rule over them in an arbitrary way. Benefits we reluctantly do give them are non-committal and are regarded as acts of generosity – not as a matter of justice. In political theory this extreme form of subordination and political dependence, combined with arbitrary rule, are taken to be the core ingredients of tyrannical rule. Tyrannical or not, the political relationship between humans and non-humans is an unhealthy one. And this observation should trouble us – especially democrats.

Responsible Reform

Although the systematic political subordination of other sentient animals might be a fundamental problem within democracies, it is not necessarily a problem that can't be fixed. The political invisibility of non-human interests in our democratic institutions needn't mean that our democracies are to be discarded with. Liberal democracies have shown themselves to be astonishingly flexible in adapting their political and legal institutions to radically changed ideas of equality, and there is no reason to think that this will not happen this time. The liberal democracy is still one of the most successful ‘inventions’ in centuries, so it is extremely important to not recklessly dive into an animal emancipation project that may put it all at risk. To help us to responsibly lead the legal and political emancipation of non-human animals in the right direction it is important that we exchange ideas on this subject from all over the world. Such a gathering, in which world-wide experts on animal politics (including Robert Garner and Will Kymlicka) and law (including Steven Wise) exchange ideas of future animal emancipation, will take place in the Netherlands on November 12 and 13. I have had the honour of co-organising this conference and those interested are very welcome to attend and be inspired.

Steven Wise

President of the Nonhuman Rights Project and lawyer in the world famous lawsuits on behalf of chimpanzees Tommy, Leo, Hercules and Kiko.

Will Kymlicka

Professor of Philosophy at Queen’s University in Canada and the Central European University in Hungary. Co-writer of the ground-breaking book Zoopolis, a Political Theory of Animal Rights.

Robert Garner

Professor in Political Theory at the University of Leicester. His publications include A Theory of Justice for Animals, Animal Ethics, and Animals, Politics, and Morality.

Lori Gruen

William Griffin Professor of Philosophy and Professor of Feminist, Gender, and Sexuality Studies, and Environmental Studies at Wesleyan University where she also coordinates Wesleyan Animal Studies.

Laura Wright

Associate Professor and Department Head of English at Western Carolina University. She specialises in Vegan Studies.

]]>Interdisciplinary Study of the Law, Public Law,2018-08-07T08:00:00+00:00Janneke VinkAssociation or dissociation? The Dutch Ukraine referendum and European democracyhttps://leidenlawblog.nl/articles/association-or-dissociation-the-dutch-ukraine-referendum-and-european-democ
https://leidenlawblog.nl/articles/association-or-dissociation-the-dutch-ukraine-referendum-and-european-democ#When:March 17, 2016The initiators of the referendum on EU-Ukraine association claim their goal is to bring more democracy to Europe – but how democratic are Association Agreements exactly?]]>

It is two years ago that Ukrainian president Yanukovich’ government was overturned by the Euromaidan revolution, after he suspended the signing of Ukraine’s Association Agreement with the EU. As Europe’s eyes were fixed on the hostilities that followed, the actual signing of the document in the spring of 2014 passed by without much notice. That is until recently, when a citizens’ initiative signed by over 400,000 people called for a referendum on the ratification act which was recently passed by the Dutch Parliament. Overshadowed by that other EU satisfaction poll held across the North Sea, the referendum is met with a mixture of disinterest and raised eyebrows. Nevertheless, a Dutch ‘no’, much like a UK ‘out’, could have far-reaching consequences.

Confusion abounds. Many people don’t know what the Association Agreement is about exactly – or why we have to vote on it. And even if the public were to be informed, what can it possibly say on a technical and dense trade agreement of 2135 pages? Polls show that voters have little interest in the referendum, but of those who do, the majority is planning to vote against. For a more substantive discussion of the Agreement, I refer to a previous blog article. This blog will discuss the alleged democratic deficit of the agreement.

Geenpeil, the group that has initiated the Dutch referendum, says that the vote is not just about the Association Agreement itself. Their self-proclaimed goal is to bring more democracy to Europe. With this aim in mind, it has pledged to run an impartial campaign to bring people to the ballot box. The democracy argument always works, because it is difficult to counter. One will rarely hear someone advocate less democracy. But how democratic are Association Agreements exactly?

An Association Agreement, technically a treaty governed by public international law, is a document in which the EU lays down its international relations with third countries, on topics such as trade, migration, and political cooperation. It has been used since the early days of the European Community: the Union currently has around twenty Association Agreements with countries as diverse as Turkey, Chile and South Africa. The competence to conclude Association Agreements is laid down in articles 216 and 217 TFEU, according to which the European Union has the competence to conclude agreements “establishing an association involving reciprocal rights and obligations, common action and special procedure”.

The Association Agreement with Ukraine is a mixed agreement, which means that it is signed both by the EU itself and by each of the 28 Member States. Each of the parties has to ratify the agreement according to its national constitutional law, a process usually involving consent by the parliament. The Agreement enters into force once all parties have ratified it, but it was agreed that the bulk of the agreement will be provisionally applied before ratification (see article 486 and the accompanying Notice).

Not just the ratification of the agreement is a democratic process. In the process of negotiating and drafting, there is democratic oversight too. The procedure of adopting international agreements is laid down in article 218 TFEU. In short, it works as follows. The Council, deciding unanimously throughout the procedure, authorizes the opening of negotiations and appoints a negotiator, usually the Commission. The negotiator then enters into dialogue with the third country, following the negotiating directives given to it by the Council. When an agreement is reached, the Council authorizes the concluding and signing of the agreement, after obtaining consent from the European Parliament, which must approve the agreement but has no right of amendment.

Currently, the EU-Ukraine Agreement has been signed by all contracting parties, and ratified by most. Because the Dutch citizens’ initiative had to concern a legally binding act, it is the Dutch ratification act that is the subject of the referendum. This automatically reversed the Dutch ratification of the Agreement, even though it had already been approved by the Dutch Parliament. It has been questioned whether such a reversal is politically desirable and even if it is legally solid. After all, it means that not just a Dutch signature, but even a Dutch ratification of any international agreement cannot be considered final until the deadline for a referendum has passed. This no doubt does no good to Dutch diplomatic leverage.

Although the entry into force of the Agreement is suspended awaiting Dutch ratification, the provisional application is not. Parts of the Agreement have been provisionally applied since November 2014, and the Deep and Comprehensive Free Trade Area (DCFTA) which lies at the heart of the Agreement became operative on 1 January 2016. A reversal of its application is very unlikely as it would require consent from Ukraine and unanimity in the Council.

This means that a Dutch ‘nee’ can put the Dutch government in a very awkward position. The referendum outcome is advisory, not binding, but ignoring a negative vote could have serious political consequences on the domestic level. Following a negative advice however will be embarrassing to explain to our European colleagues. The Dutch would have to negotiate a kind of opt-out for the areas outside the Union’s exclusive competence, and explain why no such opt-out is needed for the similar agreements with Moldova and Georgia. Meanwhile a precedent has been set, and the Eurosceptic alliance that triggered the referendum can be expected to start targeting other EU-related laws. And all this while the Netherlands holds the rotating presidency of the Council!

Much has been said of the alleged democratic deficit of the European Union. But in the upcoming referendum and the public debate that precedes it, it is good to keep a few things in mind. The drafting and concluding of Association Agreements is a competence given to the Union by the Member States. The Agreement creates no new competences for the Union, and it is certainly not about EU membership. It is decided upon unanimously by the Council every step of the way, monitored and approved by the European Parliament, and ratified in each Member State according to its national law. If all this does not suffice to make the Agreement democratically sound, then it is hard to conceive that a referendum about which the public hardly cares will.

]]>Public Law,2018-08-07T08:00:00+00:00Thomas WeberA conference to celebrate our 200 year-old Dutch Constitution.https://leidenlawblog.nl/articles/a-conference-to-celebrate-our-200-year-old-dutch-constitution
https://leidenlawblog.nl/articles/a-conference-to-celebrate-our-200-year-old-dutch-constitution#When:June 9, 2015Our 200 year-old Dutch Constitution as an inspiration for other countries. What lessons can be learned from the Dutch Constitution?]]>

On June 3rd last, International IDEA, Leiden University and the Ministry of Foreign Affairs organized a conference to celebrate 200 years of the Constitution of the Netherlands, with representatives attending from countries including Morocco, Egypt, Libya, Nepal, Liberia and Myanmar. The central aim of the day was to look at what lessons the Dutch Constitution can offer countries that are currently in constitutional transition. I was invited to attend this conference within the framework of my research internship at the Department of Constitutional and Administrative Law.

After an introduction by Professor Ginsburg of the University of Chicago, Professor Cliteur of Leiden University was the first to give a presentation about constitutional identity. First he described the fog surrounding the Dutch Constitution: the Constitution cannot be read without some knowledge of constitutional history. If we read between the lines, the Dutch Constitution is committed to three general ideas: democracy, the Rule of Law and individual human rights. Another sense of Dutch identity is that the Netherlands is a constitutional democracy. The point is that the Dutch are very pragmatic, therefore Professor Cliteur thinks it better if the Dutch Constitution demonstrated a clear commitment to the principles of democracy, the Rule of Law and human rights, because that would give a clear frame of reference about the values upon which our civilization is built.

The second workshop was presented by Professor De Lange of the Erasmus University Rotterdam. He talked about the constitutional review of primary legislation by the judiciary and its functional equivalent. The Netherlands has a very exceptional position compared to other jurisdictions, because constitutional review does not exist and it is unlikely that it will come into being anytime soon. Therefore he argues that the consideration of functional equivalents is increasingly necessary. A closer study of mechanisms of dialogue between courts and of the interpretation in conformity with treaty law and with the Constitution may provide a way forward.

Then Professor Voermans of Leiden University gave a presentation on the enigmatic nature of power sharing under the Dutch Constitution. The Dutch do not have a strong cultural constitutional tradition, but after 200 years the core constitutional values of the Rule of Law and democracy need no longer be amplified by the constitutional document. Actually, the more outspoken a Constitution is, the more conflict it may cause. The political system of the Netherlands has for a very long time been a consociational democracy, in which major internal religious and ethnic divisions have been bridged by different forms of power sharing, proportional representation and minority protection. An interesting lesson that can be learned from the Dutch Constitution is that it affects economic growth. A Constitution provides political stability which in turn lessens uncertainty, increases the probability of return on investment and as a result increases the possibility of economic growth.

The last presentation of the day was given by Reijer Passchier, PhD Candidate at Leiden University. He talked about adaptive capacity and constitutional rigidity. He described the paradox of constitutional change: written constitutions are supposed to provide a stable and permanent framework for government, but on the other hand constitutions need adaptive capacity in order to be able to endure as circumstances and demands change. To balance stability and flexibility many countries have formal amendment procedures, but in the Netherlands the formal constitutional amendment procedure has been in functional disuse for almost a century. This has triggered another form of amendment: silent constitutional change. He argued that it is remarkable that silent constitutional change has not fundamentally undermined the Dutch constitutional order. He concluded with two lessons that can be learned from the Dutch constitutional experience: first, do not make a written constitution too rigid, and second, make sure that, if employed, alternative means of change equally guarantee sufficient deliberation and the inclusion of minorities and small parties in the process of constitutional development.

After these interesting workshops we went to the ´Mauritshuis´ museum for dinner and a panel discussion on constitutional identity with prominent speakers from various disciplines.

To conclude, it was a great honour and truly inspirational to attend this conference.

]]>Public Law,2018-08-07T08:00:00+00:00Valérie VerschoorThree types of legitimationhttps://leidenlawblog.nl/articles/three-types-of-legitimation
https://leidenlawblog.nl/articles/three-types-of-legitimation#When:December 18, 2014Could it be the case that the modern type of legitimation, complemented by a touch of pre-modern legitimation, suffices in a post-secular context as well?]]>

The issue of legitimation of the constitutional and political order is rapidly increasing in saliency globally, and that includes the West. Mark C. Modak-Truran distinguishes three types of such legitimation: pre-modern, modern and post-secular.
The pre-modern type rests on either a transcendent foundation of the constitutional and political order or the idea of an otherwise pre-existing normative order. Contemporary examples of states legitimized in a (predominantly) pre-modern way are constitutional theocracies such as Iran and Iraq.
The modern type of legitimation is what we in the West, under the influence of rationalization, are most familiar with. According to this conception, the notions of constitutionalism and democracy as such provide sufficient justification for the state. Positive law is regarded as authoritative as long as the legality principle is adhered to. No further questions about the deeper foundations of the notions of constitutionalism and democracy are asked.
In our post-secular age these questions can arguably no longer be avoided, however. The 'new religious pluralism' requires legitimation of a different kind than 'legal fideism', be it primarily at the level of individual citizens.

It is so far not entirely clear whether the ethos of religious pluralism thus required for this third type of legitimation will prove to be strong enough to actually sustain a constitutional and political order. Neither can we be certain that the notions of constitutionalism and democracy will remain in place, or that their contents will essentially remain the same.
It may therefore be of interest to recall that in practice modern conceptions of legitimation often also contain a pre-modern element. Thus, in the West classical liberalism was intimately linked to Christian theological notions such as original sin, the separation of church and state, conscience protection, and the fundamental equality of all human beings before God. One only has to look at the Federalist Papers.
To the extent that a flourishing civil society forms a necessary pre-condition for a well-functioning constitutional democracy, liberalism needs God as well. As the Pope's recent speech to the European Parliament illustrated once again, Christianity in a distinctive manner emphasizes the role of intermediate institutions between the individual and the state, such as the family and voluntary associations.

Could it be the case that the modern type of legitimation, complemented by a touch of pre-modern legitimation, suffices in a post-secular context as well? No convincing alternatives for the notions of constitutionalism and democracy have yet emerged. Paradoxically, moreover, their historically tested transcendent foundations might well prove more inclusive than an artificial, post-secular construct.
To the extent that our post-secular age makes us more aware of the pre-modern foundations of our constitutional and political orders, the new religious pluralism can be welcomed. The resulting questions in terms of legitimation can, however, best be addressed by (re)adopting a classical liberal approach.

]]>Public Law,2018-08-07T08:00:00+00:00Hans-Martien ten NapelThey Who Dare (or: the Big Guns go to Brussels)https://leidenlawblog.nl/articles/they-who-dare-or-the-big-guns-go-to-brussels
https://leidenlawblog.nl/articles/they-who-dare-or-the-big-guns-go-to-brussels#When:May 22, 2014Polls predict a meagre turnout today at the ballot. The European Parliament simply isn’t sexy. Not just for voters, also for politicians. A survey shows that our neighbours are sending in their top guns. We should follow their example.]]>

Rumour has it that today is election day. In the next few days some four hundred million European voters may cast their vote in, what is supposedly, the world’s largest transnational election feast.

Yet here is the snag. Most of us cannot be bothered. At least not in the Netherlands where the polls predict a turnout of only 30-36%. The European Parliament apparently lacks sex appeal. Few voters take it seriously. But what about political parties? Even if ‘Europe’ is only half as powerful as both its supporters and its fiercest critics claim it to be, would it not be worth investing some political capital in its parliament? After all, sexy or not, it still commands impressive powers. One would expect at least a few top dogs to be nominated: former ministers, important MPs. People like that.

Well, no. Not in the Netherlands anyway. This is one of the preliminary findings of a survey we recently carried out in close collaboration with the Montesquieu Institute. We compared the election lists of the major parties of 11 Member States (The Netherlands, Belgium, Luxembourg, Germany, Austria, France, the United Kingdom, Denmark, the Czech Republic, Spain and Portugal). We looked at the resumes of the top 4 of every list and added a score for each political office held. A former mayor of the city of Vienna, for example, got 100 points. A former prime minister got 700 points, a local councillor in a small town only 10. We then did the same for those elected to the European Parliament in 2004 and 2009.

The result is astonishing. It turns out that the Dutch consistently send the ‘least important’ people to Brussels. Whether in 2004, 2009 or in the current elections, none of the serious candidates has a background as a cabinet minister. None of them was a mayor of a major city. The Belgians, by contrast, have a tradition of sending their former prime ministers to the European Parliament. Their lists include as many as eight former cabinet members. The same goes for the French. The German lists are more modest, but they too have their big shots. The Christian Democrats are headed by David McAllister, a former PM of Lower Saxony and only last year mentioned as a possible successor of Angela Merkel. Even Denmark, not exactly famous for its pro-European attitude, is sending two former ministers.

Now what does this tell us?

First of all that the political elite in countries such as Spain and Belgium is far more prepared to invest than we are. That may not be problematic if things are going great, but it certainly is in times of crisis. Still, are former ministers any better at ‘getting things done’ in Brussels? Maybe not. But then again, why would other countries nominate them? And why oh why do they usually occupy the top of any list in the general elections? And are they not, generally speaking, the ones that should be able to sell a hard policy? Something ‘Europe’ is desperately in need of these days? Neither the legitimacy of the Parliament itself, nor the practical interests of the Member States have anything to gain by sending a team of quasi reserves to Brussels. As David Cameron reminded us, only last week:

‘when you vote, you’re sending people to the European Parliament who will legislate on the regulation faced by British business and the bills paid by British taxpayers’. (…) When you think of voting, think of the competence of people that you’re going to send to Brussels or Strasbourg’.

It is a lesson, not only for the voters, but for the parties themselves as well.